McClure v. Herring. makes the principal covenant expressly in the conclusion of the deed, yet he does not covenant by the words "grant, bargain and sell," and the granting clause is the controlling part of a deed. 2 Wash. on Real Prop. (2d ed.), 651, 652, 613; Shep. Touch. 52, p. 98. The grant must be that of the principal. 2 Wash. on Real Prop. (2d ed.), 598, 599, p. 573; Murphy v. Price, 48 Mo. 247; Elwell v. Shaw, 1 Am. Lead. Cas. (4th ed.) 596; New England Marine Ins. Co. v. De Wolf, id. 600, 607. The deed does not purport to be that of the principal, but that of the attorney only. It is by Thomas W. Hawkins, who as "attorney for Leo and Mrs. G. Augusta Tarlton, sets their hands and seals." 1 Am. Lead Cas. 602, 603. HENRY, J. The plaintiff brought suit in the Harrison Circuit Court to its March term, 1877, against defendant for the possession of the south-west quarter of section 20, township 66, range 27, in said county. The petition was in the ordinary form of petition in ejectment. The defendant's answer was a general denial. Plaintiff read in evidence, to maintain the issues on his part, a United States patent, conveying the land to Leo Tarlton. Plaintiff then read in evidence a power of attorney from Leo Tarlton and wife to Thomas W. Hawkins, authorizing him as their attorney in fact, in their names, to sell and dispose of, in fee simple, all lands of which they were seized in the counties of Atchison, Andrew, Harrison, Grundy and Gentry, in the State of Missouri; as well as other lands situate and lying in the State of Missouri; and for them, in their names and as their act and deed, to sign, seal, execute and deliver such deeds and conveyances for the sale and disposal of any part thereof, as their said attorney should think fit. Plaintiff next offered in evidence a certified copy of the record of a deed from Thomas W. Hawkins, for himself and Leo Tarlton and wife, to Alfred W. Lamb, which deed was as follows, affecting said lands, to-wit: "Know all men by these presents That I, Thomas W. Hawkins, of Marion county, State of Missouri, for myself, and as attorney for Leo Tarlton and Mrs. G. Augusta Tarlton, his wife by their duly authorized letters of attorney, under their hands and seals, in consideration of $1,850, to us paid by Alfred W. Lamb, of Marion county, State of Missouri, do sell and convey to said Alfred W. Lamb, and his heirs forever, the following described tracts or parcels of land lying and situate in the county of Harrison, and * * * McClure v. Herring. south-west quarter of To have and to hold State of Missouri, to-wit: The section 20, township 66, range 27. the said tracts or parcels of lands, with all the privileges, etc., to said grantee and his heirs forever. And we, the said Leo Tarlton and G. Augusta Tarlton, do covenant with said grantee and his heirs that we are rightfully seized in fee simple of said tracts or parcels of land, etc., and that we and our heirs will warrant the said premises to said grantee and his heirs forever against the lawful claims of all persons. In witness whereof, I, Thomas W. Hawkins, in my own right, have hereunto set my hand and seal, and as attorney for said Leo Tarlton and Mrs. G. Augusta Tarlton, have hereunto set their hands and seals. 66 'THOMAS W. HAWKINS, [L. S.] "LEO TARLTON, [L. S.] "G. AUGUSTA TARLTON, [L. 8.] "By Thomas W. Hawkins, their attorney in fact." Defendant, by his attorneys, objected to the introduction of said deed, because, 1st. It was the deed of the attorney, Hawkins, and not that of Tarlton and wife; 2d. It is ineffectual as a conveyance by Tarlton and wife, of any title owned by them in the land in controversy; 3d. The power of attorney under which the deed was made did not sufficiently designate the land to be conveyed by the attorney; 4th. The deed does not purport to be that of the principal, nor to convey the title of the principal, but only that of the attorney. The court sustained the defendant's objections, and rejected the deed as evidence, to which plaintiff excepted, and leave to set aside nonsuit taken being refused, plaintiff brings this case here by appeal. Mr. Washburn, in his work on real property (vol. 2, 2d ed., 576), reviews the cases on the subject presented for consideration here by the action of the court in excluding the deed from the jury, and admits that there is conflict of opinion, but states the doctrine deducible from them thus: "The leading doctrine running through them, though not always applied, seems to be, that to make such a deed valid, the instrument itself must, in terms show that it is the deed of the principal, that he makes the grants and covenants, and that the seal is his. The instrument, in some part, must also show that its execution by the principal was done by the attorney named. If this all appears clearly in any part of the instrument, the precise McClure v. Herring. form or arrangement of the words does not seem to be essential." In Elwell v. Shaw, 16 Mass. 42, 47, reported also in Am. Lead. Cas. as a leading case on the subject, the deed recited the power of attorney to Joshua Elwell, and then proceeded as follows: "Know ye that I, the said Joshua, by virtue of the power aforesaid, etc., do hereby bargain, grant, sell and convey, etc.," and concluded: "In testimony whereof, I have hereunto set the name and seal of said Jonathan this, etc. JOSHUA ELWELL. [Seal.]" The body of the deed there is similar in some respects to the deed in this case, but in the execution of the deed there is a marked and important difference. Here the names of the principals are signed as grantors and their seals attached, while neither in the body nor in the execution of the deed in Elwell v. Shaw does the principal appear as grantor. In Mussey v. Scott, 7 Cush. 216, METCALF, J., observes: "But however clearly the body of the deed may show an intent that it shall be the act of the principal, yet unless it is executed by his attorney for him, it is not his deed, but the deed of the attorney or no one." On that principle alone Elwell v. Shaw may be maintained, and there are numerous other adjudged cases which were controlled by that principle. Fowler v. Shearer, 7 Mass. 15, is frequently cited in discussion on this subject. There John Fowler, the husband, gave his wife, Abigail, a power of attorney to execute a deed for land she made a conveyance as follows: "Know ye that I, Abigail Fowler, of Palmer, etc., and also as attorney to John Fowler, etc., in consideration of, etc., paid by Daniel Shearer, of Palmer, have given, granted, and by these presents do give, grant, etc." The language of the remainder of the deed purported to be her conveyance and her covenants. The instrument concluded "In witness whereof, I have hereunto set my hand and seal, this 7th day of August, 1805. ABIGAIL FOWLER. [Seal.]" The court held that it was not the deed of the husband. As in Elwell v. Shaw, the principal did not execute it, and therein both differ from the case at bar. - Harper v. Hampton, 1 Harr. & J. 709, was a case in which the attorney signed his own name as attorney for his principal, and it was held to be the deed of the attorney, and not of the principal. The contrary, however, was held by this court in Martin v. Almond, 25 Mo. 313, and while the adjudications on the subject are not harmonious, we think the doctrine of that case fully sustained by the weight of authority. There is a general disposition to relax the rigid rules McClure v. Herring. of the common law in regard to conveyances. The formality and exactness formerly deemed necessary are not now required. There is a disposition to effectuate the intention of the parties, where that can certainly be ascertained from the deed. But to return to the main question. Shanks v. Lancaster, 5 Gratt. 110, 118, is a case directly in point. The deed made by the attorney was in the name of Abraham Beckner, attorney in fact for Jacob Beckner and Catherine, his wife, of the first part." It proceeded in the same style to convey the land, and in the same style he covenanted for himself, his heirs and executors, in behalf of said Jacob Beckner and Catherine, his wife, under authority of a power of attorney duly executed, and of record, to warrant the title to the plaintiff free from the claims of himself and his heirs, and from the claims of Jacob Beckner and wife, and their heirs, and it concluded: "In witness whereof, the said Abraham Beckner attorney in fact for Jacob Beckner and Catherine, his wife, as, aforesaid, has hereunto set his hand and seal, etc. JACOB BECKNER [Seal] and CATHERINE, his wife [Seal], by ABRAHAM BECKNER [Seal], their attorney in fact." The court held the deed sufficient to pass the title of Jacob Beckner to the grantee. In Hale v. Woods, 10 N. H. 470, Daniel and Zachariah King were joint owners of a tract of land, and Daniel was empowered by Zachariah to sell and convey his interest. He sold the land and made the following conveyance: "I, Daniel King, as well for myself, as attorney for Zachariah King, doth for myself and said Zachariah, remise, release and forever quit-claim the premises (describing them) together with all the estate, etc., of us, the said Daniel and said Zachariah, which we now have, etc. And we, the said Daniel and Zachariah, do hereby, for ourselves, our heirs and executors, covenant that the premises are free from all incumbrances, and that the grantee may quietly enjoy the same without any claim or hindrance from us, or any one claiming under us, or either of In witness whereof, we, the said Daniel, for himself, and as attorney aforesaid, have hereunto set our hands and seal, etc. (Signed), DANIEL KING, and also DANIEL KING, attorney for Zachariah King, being duly authorized as appears of record," with seals affixed to each signature. us. The court held the power properly executed, and that the deed passed the title of Zachariah. UPHAM, J., said: "The covenants in this case in the deed are clearly the covenants of the principal; McClure v. Herring. and we think, from the terms used, the grant purports to be the act of the principal. The grant is for said Daniel and Zachariah of all the interest which we now have, or have heretofore had in the premises. If these terms, together with the covenants, purport a conveyance of the interest of the principal, the execution of the deed would seem to be sufficient to effect the intent of the instrument." Those cases are not distinguishable in principle from the case at bar, and the facts in each were such as to raise the precise question presented by this record. See, also, Butterfield v. Beall, 3 Ind. 203; Varnum v. Evans, 2 McMullan, 409. In Townsend v. Hubbard, 4 Hill, 351, 359, WALWORTH, Ch., said: "To bind the principal by deed, no particular form of words is necessary, provided it appears upon the face of the instrument that it was intended to be executed as the deed of the principal, and that the seal affixed to the instrument is his seal, and not the seal of the attorney or agent merely." In Hunter's Admr. v. Miller's Exrs., 5 B. Mour. 612, 620, the court laid down the following, which Messrs. Hare and Wallace in their note to Elwell v. Shaw, say is a reasonable rule: "If it clearly appears, on the face of the instrument, who is intended to be bound, and if the mode of execution be such as that he may be bound, the necessary consequence of the universal principle applicable to contracts is that he is bound, and that if such appears to be the intention of the parties he alone is bound." Here, in the body of the deed, Hawkins declares that he makes the conveyance as attorney for Leo and G. Augusta Tarlton, under their power of attorney, and said Tarlton and wife, in the body of the deed, covenant with Lamb, the grantee, that they are rightfully seized in fee simple of the lands, and that they and their heirs will warrant the premises to said grantee and his heirs forever, etc. The consideration, $1,850, is acknowledged in the deed to have been paid to “us,” not to the attorney alone. The names of the principals were severally signed to the deed, with a seal to each. "By Thomas W. Hawkins, their attorney in fact." The manner in which the deed was executed, the covenant entered into by Tarlton and wife that they would warrant the title to Lamb, etc., the declaration in the deed that Hawkins is acting for the principals, naming them, by virtue of their power of attorney; the acknowledgment of the receipt of the money by "us," unmistakably show that it was the VOL. XXXV-52 |